Smith v. Odell
| Decision Date | 21 November 1922 |
| Citation | 234 N.Y. 267,137 N.E. 325 |
| Parties | SMITH v. ODELL et al. |
| Court | New York Court of Appeals Court of Appeals |
Action by Thomas J. Smith against Charles J. Odell and others, as Trustees of the Freeholders and Commonalty of the Town of Brookhaven, impleaded with others. A judgment dismissing the complaint was reversed by the Appellate Division, and judgment directed for plaintiff (194 App. Div. 763,185 N. Y. Supp. 647), and the defendant trustees appeal.
Order of the Appellate Division reversed, and judgment of the Special Term reinstated.
Appeal from Supreme Court, Appellate Division, Second Department.
Ralph J. Hawkins, of Patchogue, for appellants.
Joseph S. Auerbach and Martin A. Schenck, both of New York City, amicus curiae.
Frank W. Shaw, of Patchogue, for plaintiff respondent.
The action is brought by a taxpayer and inhabitant of the town of Brookhaven to cancel two ten-year leases of certain land lying under water in the Great South Bay, L. I. They were given for a specified consideration by the trustees of the freeholders of the town of Brookhaven to William Kreamer, represented in the action by the defendants, his executors and heirs at law.
The leases describe the land and state they were given ‘for the purpose, nevertheless, and for no other purpose whatever, of the gunning privilege and the right of shooting wild fowl that habit that locality.’
The complaint alleges, the answer admits, and the trial court found, as did the Appellate Division, that the title to the land leased is in said trustees as proprietors and not as part of the lands necessary to carry on the functions of the town government. The title is lodged in such trustees as the successors of the patentees of two colonial patents known as the Nichols and Dongan patents, given respectively in 1666 and 1686, also by an Indian deed dated November 10, 1685. By the patents the patentees were given the exclusive right of ‘fishing, hawking, hunting, and fowling,’ together with power to lease or sell the lands covered thereby.
The construction of such patents and the rights conferred by them have been finally and conclusively settled and determined by this court. Trustees of Brookhaven v. Strong, 60 N. Y. 56;Lewis Blue Point Oyster Cultivation Co. v. Briggs, 198 N. Y. 287, 91 N. E. 846,34 L. R. A. (N. S.) 1084,19 Ann. Cas. 694. The patents specifically vested the rights of fishing, hunting, and fowling in the trustees and have been confirmed and ratified by the colonial laws as well as by the Constitution of New York adopted in 1777, § 36; Constitution 1821, art. 7, § 14; Constitution 1846, art. 1, § 18; Constitution 1894, art. 1, § 17. The trustees and their predecessors invested with the fee of the lands, including the easements of hunting and fishing, have for upwards of 100 years leased fishing rights and hunting privileges in the Great South Bay, during which time, so far as I have been able to discover, their right and power to do so have not been seriously questioned. The right to make such leases was expressly given by the Dongan charter.
The title of the trustees and the rights conferred by the patents are subject, however, in the interest of commerce, to the right of the public to use the waters of the bay for the purpose of navigation. Lewis Blue Point Oyster Cultivation Co. v. Briggs, supra.
The Appellate Division, as appears from the opinion delivered, reached the conclusion that the trustees have the same property or interest in the land under water that a landowner has in the margin of a highway passing through his land; that no one has any property in wild game until he has actually taken possession of it; that mere ownership of the land where such game happens to be does not amount to a reduction to possession; that if one has a right to be upon the land, he has, incidentally, the right to take any wild game thereon, subject...
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